Knox & Requa v. Marshall

Citations

• 19 Cal. 617

Syllabus

<p>Where two persons enter into a contract to work a farm on shares—the one to furnish the land, teams and seed, the other to sow and harvest the grain and cut the hay, the hay and grain when harvested to be equally divided between them—they become tenants in common of the grain and hay, until a division be made. Each is entitled to possession of the whole, as against all persons except his cotenant, and can maintain an action for its recovery.</p> <p>Where, in such case, one of the tenants in common gave to his creditor an order on his cotenant—who furnished the land, teams and seed—for the possession of all the right, title and interest of the drawer in the hay and grain then on the farm : Held, that the order to deliver possession to the creditor only authorized a possession in connection with the cotenant; but that the latter, having consented to a delivery of the sole possession to the creditor, and he having taken such sole possession, the creditor was entitled to hold possession of the whole crop to the exclusion of third parties ; and that other creditors of the drawer of the order cannot complain that the drawee has not sufficient title or interest in the hay and grain to maintain an action for its possession.</p> <p>Where a stranger to an execution is in possession of personal property, claiming it as his own by virtue of such a transfer to him from the execution debtor as would prevent the latter himself from retaking possession, whether the transfer be by sale or pledge, a Sheriff cannot justify a seizure of the property under the writ without producing both the writ and the judgment.</p> <p>Hence, where, in such case, the execution creditor causes the property to be seized by the Sheriff, and claims that the transfer from the debtor to the stranger to the writ was fraudulent and void, and made to hinder, delay and defraud creditors, and on the trial, having put in evidence the execution but not the judgment, offers evidence to show that the transfer was